California Supreme Court's daunting task: Unite pot-dispensary rulings

Published: Tuesday, Mar. 13, 2012 - 12:00 am | Page 1A
Last Modified: Sunday, Mar. 18, 2012 - 8:06 pm

When it comes to rulings on medical marijuana, California courts have a case of multiple personality disorder.

A flurry of recent, conflicting decisions by state appellate courts on whether cities can ban marijuana stores or be forced to allow them is setting up a landmark review by the California Supreme Court.

The state's high court recently agreed to accept four cases involving marijuana dispensaries. Two more cases may be on the way, including the appeal of a Feb. 29 ruling in Orange County that said cities can't ban cannabis stores but that such stores have to grow all of their pot on site – a requirement dispensaries say is impossible to satisfy.

"It's chaos," said Dale Gieringer, California director for the National Organization for Reform of Marijuana Laws. "We're going to have to wait for the Supreme Court to sort this out."

The legal confusion is growing as the federal government cracks down on marijuana providers. The enforcement actions by the U.S. attorneys won't be affected by the state court cases.

State appeals courts have differed on how the federal ban on marijuana should affect cities and counties in a state that permits medical use. One key ruling said federal law prevents cities from allowing dispensaries; another said it can't be used as an excuse to ban them.

"I've never seen anything like this," said Joe Elford, legal counsel for Americans for Safe Access, a group advocating for medical marijuana users.

It could be a year or two before the state Supreme Court can clarify the legal haze. In the meantime, some advocates and lawyers say it may be up to the Legislature to pass new laws to deal with the conflicting rulings.

The outcome of all the legal wrangling could have a big impact on places such as Sacramento County, which closed nearly 100 dispensaries under its zoning law, and the city of Sacramento, which has allowed marijuana stores under a set of regulations that includes taxes and strict operating rules.

Seemingly conflicting opinions from a single venue – the 2nd District Court of Appeal – illustrate why lawyers and activists on opposing sides wonder how, or if, the state Supreme Court can provide a lasting answer.

In October, the 2nd District's three-judge panel seemed to deal a devastating blow to medical marijuana advocates when it ruled that the city of Long Beach couldn't issue permits to dispensaries because marijuana is illegal under federal law.

The court said the city couldn't set rules, including requiring dispensaries to send pot samples for lab testing for molds or pesticides, because of the federal Controlled Substances Act's "prohibition on distributing marijuana."

Last month, the same court – and two of the same judges – handed marijuana advocates a stunning victory. The panel threw out criminal convictions against a Hollywood cannabis club operator, William Colvin, ruling that he was legally transporting more than a pound of pot between two dispensaries under state medical marijuana law.

The Supreme Court has granted review in the Long Beach ruling, which came 14 months after the state's 4th District Court of Appeal ruled the city of Anaheim couldn't ban dispensaries simply because of federal law.

Legal observers say Attorney General Kamala Harris, on the losing side in the Colvin case, could appeal to the state Supreme Court on grounds that shuttling pot between retail-style establishments doesn't fit the legal definition of collective cultivation under state law.

Sometimes, the contradictions have been contained in a single case. A Feb. 29 ruling, also from the 4th District Court, both elated and infuriated medical marijuana supporters and puzzled attorneys for cities.

The panel ruled in favor of one of 28 dispensaries closed under a ban in the Orange County city of Lake Forest. It declared that "local governments may not prohibit medical marijuana dispensaries altogether" under state law. In an unexpected twist, the court also ruled that marijuana stores must grow all pot on site.

Justice Richard M. Aronson acknowledged that the decision might leave nobody happy. "We recognize our conclusions today may disappoint … the opposing sides in California's ongoing debate concerning medical marijuana," he wrote.

The ruling left both sides flummoxed.

Elford, the lawyer for medical marijuana users, said the court "got it right" in rejecting dispensary bans but disagreed with the pot-cultivation interpretation.

"I just don't see that in California law," he said.

In California, most dispensaries buy marijuana from vast networks of "patient" growers. Many cities that allow dispensaries ban the stores from growing on site.

Both Elford and Jeffrey Dunn, Lake Forest's attorney, questioned whether dispensaries can grow enough for their thousands of clients.

And the decision sent tremors through groups representing pot cultivators.

Dunn said the ruling undercut cities trying to use zoning laws to stem the "uncontrolled, explosive growth" of medical marijuana outlets. He said Lake Forest plans to appeal to the state Supreme Court.

Another case accepted by the high court centers on whether a Dana Point medical marijuana user, Malinda Traudt, can sue over a dispensary ban in the small coastal Orange County city. The 4th District Court ruled that Traudt, who is blind and suffers from cerebral palsy, couldn't bring the case because she wasn't a dispensary operator.

Rounding out the Supreme Court's pot docket are rulings that upheld dispensary bans in Riverside and San Bernardino.

Dunn said he's counting on the Supreme Court to make sense of it all.

"I don't think the Legislature can do it," he said.

Elford is less sure the court will deliver.

"If the Supreme Court issues a decision we don't agree with, we're going to the Legislature to clarify it," he said. "I don't think the California Supreme Court will be the last word on these issues."

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Peter Hecht



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